Justice Stephen Breyer planned to give a speech in France on how unelected courts gain and keep political authority in a democratic republic. His plans, like everyone’s, changed in 2020. Instead, his remarks were delivered at home and revised to make up a book, The Authority of the Court and the Peril of Politics. In it, Breyer offers the reader a rare window into the mind of a sitting justice. While prudently avoiding specific topics that may yet come before the court, he lets us know how he thinks about the craft of interpreting the Constitution.
The slim volume offers something for everyone. Breyer begins with an explanation of how courts manage to retain respect for their rulings despite lacking the executive branch’s monopoly on force or the legislature’s power of the purse. The judiciary has built up this reservoir of authority, in Breyer’s telling, through restraint.
Early clashes with the executive had mixed results. In Marbury v. Madison in 1803, Chief Justice John Marshall performed a sort of legal jujitsu, holding that the president had acted illegally in withholding a commission from a justice of the peace appointed by the outgoing administration while also finding that the law giving the Supreme Court direct jurisdiction over the dispute was unconstitutional, thus letting the president get away with it. The court established the precedent that it could overrule laws and declare executive actions void but took no concrete action that the president or Congress could resist.
More direct confrontations would follow, with worse results for judicial authority. In Worcester v. Georgia, in 1832, the court, still led by Marshall, held that the Cherokee had the right to control the lands guaranteed to them by treaty. President Andrew Jackson is said to have replied, “John Marshall has made his decision; now let him enforce it!” The quote may be apocryphal, but it describes what happened: Jackson ignored the court and assisted Georgia’s efforts to remove the Cherokee from the state.
Breyer writes that this case was “not a happy omen” for clashes between the executive and the judiciary. A long period of judicial restraint followed, during which the court’s prestige rose. By the 1930s, when it was holding back some of the more obviously unconstitutional parts of the New Deal, the court had achieved enough popular legitimacy for Congress to block President Franklin D. Roosevelt’s “court packing” scheme, which would have added sympathetic justices until the judiciary became a rubber stamp.
The subject of court-packing clearly weighs heavily on Breyer’s mind. He cautions against it, believing that it would diminish the court’s authority and lead to counter-court-packing by Republicans as soon as they regained power. The end result would be to reduce the court to nothing more than the plaything of the political branches.
That distinction — between “political” and “nonpolitical” branches of government — is under attack. Many on both sides see the justices as merely politicians in robes. Some, mostly on the Left but increasingly on the Right, as well, even prefer that the court be openly political, so long as it means their side comes out on top.
Breyer rejects the premise entirely and finds it “a matter of concern” that broad swathes of the public believe that the court is inherently political. He says that his “experience from more than thirty years as a judge has shown me that anyone taking the judicial oath takes it very much to heart. A judge’s loyalty is to the rule of law, not the political party that helped to secure his or her appointment.”
This sort of noble, institutionalist sentiment explains in part why liberals are so angry at Breyer for refusing to retire and yield his seat to a younger, more ideological replacement. But if Breyer is correct, it also explains why they would eventually become just as angry at whoever followed him. Judges dedicate their lives to the law, not to politics. Partisans are rarely fully satisfied with their side’s judicial appointees. That is not a failing of the judges but a reflection of the truth that what the law says is not completely in accord with what any ideological faction wants it to say.
None of this should be controversial, and to this point in the book, Breyer has said little that Samuel Alito or Neil Gorsuch would not endorse. But the book closes with a section on constitutional interpretation that clearly sets him apart from the majority of the court.
Breyer reads in some overriding themes to the Constitution that add an extra-textual dimension to how he rules. “Because the Constitution itself seeks to establish a workable democracy, to protect basic human rights, and to help hold together a highly diverse society, reference to those purposes also moves Court decisions in the direction of Justice (with a capital ‘J’).”
To say that a thing was designed to be workable is almost a tautology. All of us, unless we hold the bizarre belief that the Founding Fathers purposely designed a system to fail, would agree that the Constitution and the government it created are designed to be “workable.” But elevating that idea above the text itself can lead to idiosyncratic results. When the outcome of legislation is something a judge thinks is wrong, it is easy to say, “The system isn’t working.”
How does this look in practice? Consider the recent matter of the Centers for Disease Control and Prevention’s attempt to impose an eviction moratorium on the whole country based on a strained reading of its disease control powers. Congress had passed a temporary eviction moratorium for properties backed by federal loans or assistance. But when the ban expired and Congress declined to renew it, the CDC and the Biden administration did so by decree.
A unilateral action to restrict property rights seems at odds with the Constitution’s text and the idea of a workable democracy. But here, the mutable nature of capital-J justice shows itself. “The balance of equities,” Breyer wrote in dissent, “strongly favors leaving the stay [of eviction proceedings] in place.”
Is this what a workable system looks like? Would not a democracy be deemed unworkable where the executive ignores the legislature? Breyer and his fellow dissenters may be taking their judicial oaths seriously, as he claims, but they are doing so in a manner at odds with the Constitution to which those oaths are sworn.
That may be Breyer’s idea of a Constitution that works, but it is not a Constitution most of the public would recognize.
Kyle Sammin is the senior editor of Philadelphia Weekly and the co-host of the Conservative Minds podcast. Follow him on Twitter at @KyleSammin .
